IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

       (CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi Criminal Revision No. 3660 of 2023 Md. Rezaul Karim

………Convict petitioner -Vs-

The State and another

….respondents

Mr. Md. Nahid Hasan, Advocate

 ….For the convict petitioner.

Mr. Md. Mohitul Hasan (Bishal), Advocate

……..For the opposite party No.2  Mr. Md. Shahidul Islam, AAG with

Ms. Sharmin Hamid, AAG

..… For the State

Heard on 31.10.2024, 20.11.2024

Judgment delivered on: 25.11.2024

On an application filed under sections 439 and 435 of the Code of Criminal Procedure, 1898 Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order of conviction and sentence dated 13.08.2023 passed by the Additional Sessions Judge, Court No.4, Bogura in Criminal Appeal No. 561 of 2023 affirming the judgment and order of conviction and sentence dated 26.02.2023 passed by the Joint Sessions Judge, Court No. 3, Bogura in Sessions Case No. 2049 of 2021 arising out of C.R. Case  No.  1099  of  2020(Sadar)  convicting  the  petitioner  under section 138 of the Negotiable Instruments Act, 1881 and sentencing him  to  suffer  imprisonment  for  06(six)  months  and  fine  of  Tk. 6,00,000,  in  default,  to  suffer  imprisonment  for  01(one)  month should not be set aside and/or pass such other or further orders or orders as to this court may seem fit and proper.

The prosecution case, in short, is that the accused Md. Rezaul Karim issued cheque No. SB 0110989 on 15.03.2020 drawn on his Account  No.  3311020058309  in  favour  of  the  complainant.  The complainant  presented the cheque on 16.03.2020  for encashment which was dishonoured on 18.03.2020 with the remark “account closed or dormant or blocked”. On 22.03.2020, the complainant sent a legal notice to the accused and he received the same on 29.03.2020 but  he  did  not  pay  the  cheque  amount  in  time.  Thereafter,  the complainant filed the case on 06.07.2020 in the virtual court.

The case was transferred to the Sessions Judge, Bogura and was registered as Sessions Case No. 2049 of 2021. After that, the case was sent to the Joint Sessions Judge, Court No. 3, Bogura for trial and disposal. The Joint Sessions Judge, Court No. 3, Bogura framed charge under section 138 of the Negotiable Instruments Act, 1881 and the accused was absconding. The prosecution examined 01(one) witness to prove the charge framed against the accused. After  examination  of  P.W.  1,  the  accused  was  examined  under section 342 of the Code of Criminal Procedure, 1898 and he pleaded not guilty to the charge and claimed to be tried following law.

 After  concluding  the  trial,  the  trial  court  by  impugned judgment and order dated 26.02.2023 convicted the petitioner under section  138  of  the  said  Act  and  sentenced  him  to  suffer imprisonment  for  06(six)  months  and  fine   of  Tk.  6,00,000,  in default, to suffer imprisonment for 01(one) months against which he filed  Criminal  Appeal  No.  561  of  2023  before  Sessions  Judge, Bogura which was heard by Additional Sessions Judge, Court No. 4, Bogura. The appellate court below by impugned judgment and order affirmed the judgment and order passed by the trial court against which he filed the instant appeal.

P.W. 1 Md. Abdul Matin is the complainant. He stated that accused  Md.  Rezaul  Karim  issued  a  cheque  on  15.03.2020  for payment  of  Tk.  6,00,000.  After  presenting  the  said  cheque  on 16.03.2020, it was dishonoured on 18.03.2020. On 22.03.2020 he sent  a  legal  notice  to  the  accused  and  he received  the  same  on 29.03.2020. Despite the service of notice upon the accused, he did not pay the cheque amount. He proved the complaint petition and his signature on the complaint petition as exhibit-1 series. He proved the disputed cheque, dishonour slip, P.C.R, legal notice and AD as exhibit- 2 series. The accused was absconding. On recall by the defence, he admitted that he has no objection if the accused pay the cheque amount within 03 months.

The learned Advocate Mr. Md. Nahid Hasan appearing on behalf of the convict petitioner submits that the accused issued the cheque on 15.03.2020 in favour of the complainant for payment of Tk. 600,000 but after service of notice, the accused could not pay the cheque amount due to financial hardship. He further submits that the accused settled the dispute out of court with the complainant and deposited 50% of the cheque amount before filing the appeal and 50% of the cheque amount was paid to the complainant in cash. He prayed for setting aside the impugned judgment and order accepting the compromise between the parties.

The  learned  Advocate  Mr.  Md.  Mohitul  Islam  (Bishal) appearing on behalf of the  complainant  submits that  the  convict petitioner issued the disputed cheque in favour of the complainant for  payment  of  the  loan  amounting  to  Tk.  6,00,000  and  after complying  with  all  the  procedures  under  section  138  of  the Negotiable Instruments Act, 1881 the complainant filed the case. Thereby the accused committed an offence under section 138 of the said Act. However, he submits that both the complainant and the convict petitioner settled the dispute out of court and the convict petitioner paid Tk. 300,000 in cash and the complainant is willing to withdraw 50% of the remaining cheque amount deposited by the convict  petitioner  before  filing  the  appeal.  He  also  prayed  for acceptance of the compromise made between the parties.

I have considered the submission of the learned Advocate Mr. Md. Nahid Hasan who appeared on behalf of the convict petitioner and the learned Advocate Mr. Mohitul Hasan (Bishal) who appeared on behalf of complainant opposite party No. 2, perused the evidence, impugned judgment and order passed by the courts below and the records.

On perusal of the records, it appears that a joint application sworn on 13.11.2024 is filed by both parties stating that 50% of the cheque amount Tk. 300,000 has been paid by the convict petitioner in  cash  and  the  complainant  is  willing  to  receive  50%  of  the remaining cheque amount deposited by the convict petitioner before filing the appeal and both the complainant and convict petitioner settled the dispute out of court. The Negotiable Instruments Act, 1881 is a special law and the offence under section 138 of the said Act is not compoundable. Therefore, the rule cannot be disposed of considering the compromise made between the parties. After filing a case under section 138 of the said Act, the court shall dispose of the case only considering the merit of the case. There is no scope to accept the compromise made between the parties.

There  is  a  presumption  under  section  118(a)  of  the Negotiable  Instruments  Act,  1881  that  every  negotiable instrument was made or drawn for consideration, and that every such  instrument,  when  it  has  been  accepted,  indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption under Section 118 (a) is rebuttable. The evidence of P.W.1 as regards the issuance of the cheque (exhibit-2) by the convict petitioner for payment of Tk. 600,000 in favour of the complainant remains uncontroverted  by  the  defence.  Furthermore,  the  convict petitioner admitted that he issued the cheque in favour of the complainant.

It is found that after the issuance of the cheque (exhibit-2) the same was dishonoured on 18.03.2020 and the notice (exhibit-2/3) under section 138(b) of the said Act was served upon the accused on 29.03.2020 and the convict petitioner did not pay the cheque amount following the notice sent under clause (b) of section 138 of the said Act and the complaint petition was filed in time. Therefore, I am of the  view  that  the  convict  petitioner  committed  an  offence  under section  138  of  the  said  Act  and  the  courts  below  on  proper assessment  and  evaluation  of  the  evidence  passed  the  impugned judgments and orders of conviction.

Considering the gravity of the offence, I am of the view that the ends of justice would be best served if the sentence passed by the courts below is modified as under;

The convict petitioner Md. Rezaul Karim is found guilty of the offence under section 138 of the Negotiable Instruments Act, 1881 and he is sentenced to pay a fine of Tk. 625,000.

The complainant is entitled to get the cheque amount of Tk. 600,000.

The convict petitioner Md. Rezaul Karim is directed to pay Tk. 25,000 in the trial court within 30 days from the date of receipt of a copy of this judgment failing which the trial court is directed to take necessary steps following law.

Since the complainant opposite party No. 2 admitted that he  already  received  Tk.  300,000  the  complainant  is  only entitled to get 50% of the remaining cheque amount of Tk. 300,000 deposited by the convict petitioner in the trial court before filing the appeal.

The  Rule  is  disposed  of  with  modification  of  the sentence.

Send down the lower Court’s records at once.